Exhibit 10.41
POST-CLOSING AGREEMENT
THIS POST-CLOSING AGREEMENT (this "Agreement") is made as of the
______ day of January, 2004, by INLAND WESTERN HICKORY-CATAWBA, L.L.C., a
Delaware limited liability company, having its principal place of business at
0000 Xxxxxxxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxx 00000 ("Borrower"), to BEAR XXXXXXX
COMMERCIAL MORTGAGE, INC., a New York corporation, having an address at 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Lender").
RECITALS:
A. Borrower by its promissory note of even date herewith given to
Lender (the note together with all extensions, renewals, modifications,
substitutions and amendments thereof shall collectively be referred to as the
"Note") is indebted to Lender in the principal sum of TWENTY THREE MILLION SIX
HUNDRED FIFTY THOUSAND AND No/100 DOLLARS ($23,650,000.00) advanced pursuant to
the Loan Agreement of even date herewith between Borrower and Lender (together
with all extensions, renewals, modifications, substitutions and amendments
thereof, the "Loan Agreement"), in lawful money of the United States of America,
with interest from the date thereof at the rates set forth in the Note (the
indebtedness evidenced by the Note, together with such interest accrued thereon,
shall collectively be referred to as the "Loan"), principal and interest to be
payable in accordance with the terms and conditions provided in the Note.
B. The Loan is secured by, among other things, a Deed of Trust,
Assignment of Leases and Rents, Security Agreement and Fixture Filing (the
"Security Instrument"), dated as of the date hereof, which grants Lender a first
lien on the property encumbered thereby (the "Property"). All and any of the
documents other than the Note, the Security Instrument and this Agreement now or
hereafter executed by Borrower and/or others and by or in favor of Lender, which
wholly or partially secure or guarantee payment of the Note are referred to as
the "Other Security Documents."
C. Lender was unwilling to make the Loan to Borrower unless Borrower
agreed to timely perform the matters set forth herein.
AGREEMENT:
For good and valuable consideration the parties hereto agree as
follows:
1. POST-CLOSING OBLIGATIONS.
(a) Borrower covenants and agrees to use commercially reasonable
efforts to deliver to Lender within sixty (60) days of the date hereof, an
original estoppel letter executed by Kohl's Department Stores, Inc. which does
not contain an alleged potential default based on a roof leak and peeling paint
on the exterior of the building, and is otherwise in form and substance
satisfactory to Lender in its reasonable discretion;
(b) Borrower covenants and agrees to use commercially reasonable
efforts to deliver to Lender within thirty (30) days of the date hereof, an
original subordination, nondisturbance and attornment agreement executed by
Marshalls of MA, Inc. and Borrower, in recordable form and otherwise in form and
substance satisfactory to Lender in its reasonable discretion;
(c) Borrower covenants and agrees to use commercially reasonable
efforts to deliver to Lender within thirty (30) days of the date hereof, an
original subordination, nondisturbance and attornment agreement executed by
Hickory Ridge Land Development, LLC, National City Bank and Borrower, in
recordable form and otherwise in form and substance satisfactory to Lender in
its reasonable discretion;
(d) Borrower covenants and agrees to use commercially reasonable
efforts to deliver to Lender within thirty (30) days of the date hereof, a copy
of the sublease between Hickory Ridge Land Development, LLC and Dick's Sporting
Goods, Inc.; and
(e) Borrower covenants and agrees to deliver to Lender within
thirty (30) days of the date hereof, an original Tenant Direction Letter (as
defined in the Loan Agreement) executed by Borrower for each tenant at the
Property.
2. GOVERNING LAW. This Agreement shall be deemed to be a contract
entered into pursuant to the laws of the State of New York and shall in all
respects be governed, construed, applied and enforced in accordance with the
laws of the State of New York.
3. NOTICES. All notices or other written communications to Borrower
or Lender hereunder shall be deemed to have been properly given (i) upon
delivery, if delivered in person with receipt acknowledged by the recipient
thereof, (ii) one (1) Business Day (hereinafter defined) after having been
deposited for overnight delivery with any reputable overnight courier service,
or (iii) three (3) Business Days after having been deposited in any post office
or mail depository regularly maintained by the U.S. Postal Service and sent by
registered or certified mail, postage prepaid, return receipt requested,
addressed to Borrower or Lender at their addresses set forth in the Security
Instrument or addressed as such party may from time to time designate by written
notice to the other parties. For purposes of this Agreement, the term "Business
Day" shall mean any day other than Saturday, Sunday or any other day on which
banks are required or authorized to close in New York, New York.
Either party by notice to the other may designate additional or
different addresses for subsequent notices or communications.
4. NO ORAL CHANGE. This Agreement, and any provisions hereof, may
not be modified, amended, waived, extended, changed, discharged or terminated
orally or by any act or failure to act on the part of Borrower or Lender, but
only by an agreement in writing signed by the party against whom enforcement of
any modification, amendment, waiver, extension, change, discharge or termination
is sought.
5. LIABILITY. If Borrower consists of more than one person, the
obligations and liabilities of each such person hereunder shall be joint and
several. This Agreement shall be
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binding upon and inure to the benefit of Borrower and Lender and their
respective successors and assigns forever.
6. INAPPLICABLE PROVISIONS. If any term, covenant or condition of
this Agreement is held to be invalid, illegal or unenforceable in any respect,
this Agreement shall be construed without such provision.
7. HEADINGS, ETC. The headings and captions of various paragraphs of
this Agreement are for convenience of reference only and are not to be construed
as defining or limiting, in any way, the scope or intent of the provisions
hereof.
8. DUPLICATE ORIGINALS; COUNTERPARTS. This Agreement may be executed
in any number of duplicate originals and each duplicate original shall be deemed
to be an original. This Agreement may be executed in several counterparts, each
of which counterparts shall be deemed an original instrument and all of which
together shall constitute a single Assignment. The failure of any party hereto
to execute this Agreement, or any counterpart hereof, shall not relieve the
other signatories from their obligations hereunder.
9. NUMBER AND GENDER. Whenever the context may require, any pronouns
used herein shall include the corresponding masculine, feminine or neuter forms,
and the singular form of nouns and pronouns shall include the plural and vice
versa.
10. SECONDARY MARKET/SERVICING. Lender may, at any time, sell,
transfer or assign this Agreement, the Note, the Security Instrument and the
Other Security Documents, and any or all servicing rights with respect thereto,
or grant participations therein or issue mortgage passthrough certificates or
other securities evidencing a beneficial interest in a rated or unrated public
offering or private placement (the "Securities"). Lender may forward to each
purchaser, transferee, assignee, servicer, participant, investor in such
Securities or any Rating Agency rating such Securities (collectively, the
"Investor") and each prospective Investor, all documents and information which
Lender now has or may hereafter acquire relating to the Debt and to Borrower and
the Property, whether furnished by Borrower or otherwise, as Lender determines
necessary or desirable. Borrower agrees to cooperate with Lender in connection
with any transfer made or any Securities created pursuant to the Security
Instrument, including, without limitation, the delivery of an estoppel
certificate in accordance therewith, and such other documents as may be
reasonably requested by Lender. Borrower shall also furnish and Borrower
consents to Lender furnishing to such Investors or such prospective Investors
any and all information concerning the Property, the Leases, the financial
condition of Borrower as may be requested by Lender, any Investor or any
prospective Investor in connection with any sale, transfer or participation
interest. Lender may retain or assign responsibility for servicing the Loan,
including the Note, the Security Instrument, this Agreement and the Other
Security Documents, or may delegate some or all of such responsibility and/or
obligations to a servicer including, but not limited to, any subservicer or
master servicer. Lender may make such assignment or delegation on behalf of the
Investors if the Note is sold or this Agreement or the Other Security Documents
are assigned. All references to Lender herein shall refer to and include any
such servicer to the extent applicable.
11. MISCELLANEOUS.
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(a) Wherever pursuant to this Agreement (i) Lender exercises any
right given to it to approve or disapprove, (ii) any arrangement or term is to
be satisfactory to Lender, or (iii) any other decision or determination is to be
made by Lender, the decision of Lender to approve or disapprove, all decisions
that arrangements or terms are satisfactory or not satisfactory and all other
decisions and determinations made by Lender, shall be in the sole and absolute
discretion of Lender and shall be final and conclusive, except as may be
otherwise expressly and specifically provided herein.
(b) Wherever pursuant to this Agreement it is provided that
Borrower pay any costs and expenses, such costs and expenses shall include, but
not be limited to, legal fees and disbursements of Lender, whether retained
firms, the reimbursement for the expenses of in-house staff or otherwise.
12. EXCULPATION. Borrower's obligations under this Agreement are
subject to the provisions of Section 9.4 of the Loan Agreement, and such
provisions are incorporated herein by reference.
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IN WITNESS WHEREOF the undersigned have executed this Agreement as of
the date and year first written above.
BORROWER:
INLAND WESTERN HICKORY-CATAWBA,
L.L.C., a Delaware limited liability company
By: Inland Western Retail Real Estate Trust,
Inc., a Maryland corporation, its sole
member
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Asst. Secretary
LENDER:
BEAR XXXXXXX COMMERCIAL
MORTGAGE, INC., a New York corporation
By:
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Name:
Managing Director
